United States v. Charles L. President, Jr. ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
June 20, 2007
No. 06-15631 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00040-CR-3-RV
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES L. PRESIDENT, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(June 20, 2007)
Before BLACK, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Charles L. President, Jr. appeals his sentence, which includes a three-year
term of supervised release. During President’s plea colloquy, the district court
incorrectly informed President that he faced a maximum of two years’ supervised
release when he actually faced a maximum of three years. The presentence
investigation report correctly indicated a three-year maximum period. President
told the court that he had read the PSR and had no objections. Nor did he have an
objection when the court imposed the three-year term.
We review for plain error when, as here, the defendant failed to raise any
error in his Federal Rule of Criminal Procedure 11 plea colloquy before the district
court. United States v. James, 210 F.3d 1342, 1343 (11th Cir. 2000). Under plain
error review, an appellate court may not correct an error that the defendant failed to
raise in the district court unless there is: (1) error; (2) that is plain; and (3) that
affects substantial rights. If all three conditions are met, an appellate court may
then exercise its discretion to notice a forfeited error, but only if (4) the error
seriously affects the fairness, integrity, or public reputation of the judicial
proceedings. United States v. Rodriguez, 398 F.3d 1291, 1297–98 (11th Cir.
2005).
In United States v. Dominguez Benitez, 542 U.S. 74, 124 S. Ct. 2333 (2004),
the Supreme Court ruled that a defendant who seeks reversal of his conviction after
a guilty plea on the ground that the district court committed plain error during the
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Rule 11 colloquy must show a reasonable probability that, but for the error, he
would not have entered the plea. Id. at 83, 124 S. Ct. at 2340. President concedes
that he cannot meet the Dominguez Benitez standard. He also concedes that he did
not object to his sentence or to the contents of the PSR. See United States v.
Carey, 884 F.2d 547, 549 (11th Cir. 1989) (holding that the defendant’s substantial
rights were not violated where, although the district court erred by failing to inform
the defendant at his plea hearing of the term of supervised release, the defendant
failed to object to the court’s imposition, pursuant to the PSR, of a term of
supervised release).
President cites no legal authority indicating that we should instruct the
district court to modify the term of supervised release. Instead, he argues that if a
court is not bound by its representations with respect to sentencing limitations then
the fairness, integrity, or public reputation of judicial proceedings will be
undermined. To the extent, if any, that a district court’s good faith effort to explain
the consequences of a plea to a defendant constitutes a promise to abide by that
description, President could have asked the district court to keep its promise. Our
review is only for plain error. Under plain error review, which is authorized by
Federal Rule of Criminal Procedure 52(b), federal appellate courts have only a
limited power to correct errors that were forfeited because they were not timely
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raised in the district court. Rodriguez, 398 F.3d 1291, 1298 (quotations omitted).
Disregarding the Supreme Court’s holding in Dominguez Benitez would not be a
step towards improving the integrity of these proceedings.
AFFIRMED.
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